CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (NO. 2) 2009

i Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

4 Regulations

........................................................................................

Schedule 1--Proceeds of crime

Part 1--Exclusion, recovery and compensation

Proceeds of Crime Act 2002

Part 2--Pecuniary penalty orders

Proceeds of Crime Act 2002

Part 3--Examinations

Proceeds of Crime Act 2002

Part 4--Notices

Proceeds of Crime Act 2002

Part 5--Ancillary orders

Proceeds of Crime Act 2002

Part 6--Evidence

Proceeds of Crime Act 2002

Part 7--Definitions

Proceeds of Crime Act 2002

Part 8--Technical amendments relating to orders

Proceeds of Crime Act 2002

Part 9--Confiscated Assets Account

Division 1--Simplification of accounting

Proceeds of Crime Act 2002

Division 2--Crediting amounts paid to settle proceedings

Proceeds of Crime Act 2002

Division 3--Payments by the Commonwealth under court orders

Proceeds of Crime Act 2002

Part 10--Other amendments

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 ii

Administrative Decisions (Judicial Review) Act 1977

Proceeds of Crime Act 2002

Schedule 2--Search warrants

Part 1--Seized things

Crimes Act 1914

Part 2--Use of equipment under warrant

Crimes Act 1914

Schedule 3--Witness protection

Part 1--Amendments

Witness Protection Act 1994

Part 2--Application and saving provisions

Schedule 4--Criminal organisation and association offences

Criminal Code Act 1995

Telecommunications (Interception and Access) Act 1979

106

Schedule 5--Money laundering

107

Part 1--Criminal Code Act 1995

107

Part 2--Anti-Money Laundering and Counter-Terrorism

Financing Act 2006

115

Schedule 6--Unfitness to plead

119

Crimes Act 1914

119

Schedule 7--Amendments relating to the Australian Crime

Commission

122

Part 1--Main amendments

122

Australian Crime Commission Act 2002

122

Part 2--Consequential amendments

130

Administrative Decisions (Judicial Review) Act 1977

130

Surveillance Devices Act 2004

130

Telecommunications (Interception and Access) Act 1979

130

Part 3--Application provisions

131

iii Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Schedule 8--Penalties for bribery

132

Criminal Code Act 1995

132

Schedule 9--Drug importation

135

Criminal Code Act 1995

135

Schedule 10--Amendments consequential on enactment of joint

commission offence

136

Aboriginal and Torres Strait Islander Act 2005

136

A New Tax System (Family Assistance) (Administration) Act 1999

136

Australian Institute of Aboriginal and Torres Strait Islander Studies

Act 1989

136

Corporations (Aboriginal and Torres Strait Islander) Act 2006

136

Corporations Act 2001

136

Crimes Act 1914

137

Crimes (Biological Weapons) Act 1976

137

Crimes (Internationally Protected Persons) Act 1976

137

Crimes (Ships and Fixed Platforms) Act 1992

137

Customs Administration Act 1985

138

Defence Force Discipline Act 1982

138

Excise Act 1901

138

Great Barrier Reef Marine Park Act 1975

138

Historic Shipwrecks Act 1976

138

Patents Act 1990

138

Privacy Act 1988

139

Proceeds of Crime Act 2002

139

Sea Installations Act 1987

139

Social Security Act 1991

139

Social Security (Administration) Act 1999

139

Superannuation (Resolution of Complaints) Act 1993

139

Trade Marks Act 1995

140

War Crimes Act 1945

140

Schedule 11--References to repealed provisions of the Crimes

Act 1914

141

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 iv

Aircraft Noise Levy Collection Act 1995

141

Airports Act 1996

141

Antarctic Marine Living Resources Conservation Act 1981

141

Antarctic Treaty (Environment Protection) Act 1980

141

Crimes Act 1914

141

Defence Act 1903

142

Environment Protection (Sea Dumping) Act 1981

142

Export Market Development Grants Act 1997

142

Gene Technology Act 2000

143

Health Insurance Act 1973

143

Offshore Minerals Act 1994

144

Ozone Protection and Synthetic Greenhouse Gas Management Act

1989

144

Plant Breeder's Rights Act 1994

145

Shipping Registration Act 1981

145

South Pacific Nuclear Free Zone Treaty Act 1986

145

Taxation Administration Act 1953

146

Tobacco Advertising Prohibition Act 1992

146

Trade Practices Act 1974

146

Tradex Scheme Act 1999

147

Weapons of Mass Destruction (Prevention of Proliferation) Act 1995

147

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 1

A Bill for an Act to amend various Acts relating to

the enforcement of the criminal law, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Serious and Organised Crime) Act (No. 2) 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

items 1 to 213

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

3. Schedule 1,

item 214

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 5 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

4. Schedule 1,

item 215

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if:

Legislation Amendment (Serious and

Organised Crime) Act 2009 commences

before the event mentioned in

paragraph (a); or

(d) the event mentioned in paragraph (b)

does not occur.

5. Schedule 1,

item 216

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 5 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

6. Schedule 1,

items 217 to 221

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

4 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

7. Schedules 2, 3

and 4

The day after this Act receives the Royal

Assent.

8. Schedule 5,

Part 1

The 28th day after this Act receives the

Royal Assent.

9. Schedule 5,

Part 2

The day after this Act receives the Royal

Assent.

10. Schedule 6,

items 1 and 2

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

subsection 369(4) of the Criminal

Procedure Act 2009 of Victoria.

11. Schedule 6,

item 3

Immediately after the commencement of

subsection 369(4) of the Criminal Procedure

Act 2009 of Victoria.

12. Schedules 7,

8 and 9

The day after this Act receives the Royal

Assent.

13. Schedules 10

and 11

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 4 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 5

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) In particular, regulations may be made prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to the amendments or repeals made by this

Act.

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

6 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Schedule 1--Proceeds of crime

Part 1--Exclusion, recovery and compensation

Proceeds of Crime Act 2002

1 Subsection 29(1)

Omit "may", substitute "must".

Note:

The heading to section 29 is altered by omitting "Court may exclude" and substituting

"Excluding".

2 Subsection 29(1)

Omit "specified", substitute "a specified

interest in".

3 Paragraph 29(1)(b)

Omit "property", substitute "interest".

4 Subsection 29(2)

Omit "specified", substitute "a specified

interest in".

5 Paragraphs 29(2)(a), (b), (c) and (d)

Omit "property", substitute "interest".

6 Subsection 29(3)

Before "property" (first occurring), insert "a specified

interest in".

7 Paragraphs 29(3)(a) and (d)

Omit "property", substitute "interest".

8 Subsection 29(4)

Before "property" (first occurring), insert "a specified

interest in".

9 Paragraph 29(4)(a)

Omit "owns the property", substitute "has the interest".

10 Paragraph 29(4)(b)

Omit "property is not owned", substitute "interest is not held".

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 7

11 Section 29A

Omit "may", substitute "must".

Note:

The heading to section 29A is altered by omitting "Court may exclude" and

substituting "Excluding".

12 Section 29A

Omit "specified", substitute "a specified

interest in".

13 Paragraph 29A(b)

Repeal the paragraph, substitute:

(b) the court is satisfied that the interest is held by a person other

than the

suspect and is not subject to the

effective control of

the suspect.

14 Section 29A (note)

Omit "an examination of the applicant", substitute "examinations in

relation to the restraining order".

15 Subsection 30(1)

Repeal the subsection, substitute:

(1) A person may apply for an order under section 29 or 29A if a

restraining order that could cover property in which the person

claims an

interest has been applied for, but is yet to be made.

Note:

The heading to section 30 is altered by omitting "after notice of the application for

the order" and substituting "before restraining order has been made".

16 Subsection 31(1)

Repeal the subsection, substitute:

(1) A person may apply for an order under section 29 or 29A if a

restraining order that covers property in which the person claims

interest has been made.

(1A) An application under subsection (1):

(a) must be made to the court that made the

restraining order;

and

(b) may be made at any time after the restraining order is made.

Note:

The heading to section 31 is altered by omitting "notice of the order" and substituting

"restraining order has been made".

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

8 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

17 At the end of subsection 31(6)

Add "However, the DPP need not do so until it has had a reasonable

opportunity to conduct

examinations in relation to the application.".

18 Paragraph 32(b)

Omit "an

examination of the applicant", substitute "

examinations in

relation to the application".

19 Application

Division 3 of Part 2-1 of the Proceeds of Crime Act 2002, as amended

by this Part, applies in relation to restraining orders applied for on or

after the commencement of this item, whether the conduct constituting

the offence concerned occurred or occurs before, on or after that

commencement.

20 Subsection 73(1)

Before "property" (first occurring), insert "a specified

interest in".

21 Paragraph 73(1)(b)

Omit "the applicant's property", substitute "property in which the

applicant has an interest".

22 Paragraphs 73(1)(c), (d) and (e)

Repeal the paragraphs, substitute:

would be) made under section 47 or 49--the court is satisfied

that the applicant's interest in the property is neither of the

following:

(i)

proceeds of

unlawful activity;

(ii) if an offence on which the order was (or would be)

based is a

serious offence--an instrument of any

serious offence; and

(d) if the forfeiture order was (or the forfeiture order applied for

would be) made under section 48--the court is satisfied that

the applicant's interest in the property is neither proceeds nor

an instrument of any of the offences to which the forfeiture

order or forfeiture application relates.

23 Paragraph 73(2)(a)

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 9

Omit "property", substitute "

interest".

24 Paragraphs 73(2)(b), (c) and (d)

Omit "property" (wherever occurring), substitute "interest".

25 Subsection 74(1)

Omit "the

person's property", substitute "property in which the person

claims an

interest".

26 Subsections 74(2) and (3)

Repeal the subsections, substitute:

After a forfeiture order has been made

(2) A person who claims an

interest in property specified in a

forfeiture order may, at any time after the forfeiture order is made,

apply to the court that made the forfeiture order for an

exclusion

order.

(3) However, unless the court gives leave, the person cannot apply for

exclusion order if he or she:

(a) was notified of the application for the

forfeiture order, but

did not appear at the hearing of that application; or

(b) appeared at the hearing of that application.

(4) The court may give the person leave to apply if the court is

satisfied that:

(a) if paragraph (3)(a) applies--the person had a good reason for

not appearing; or

(b) if paragraph (3)(b) applies--the person now has evidence

relevant to the person's application that was not available to

the person at the time of the hearing; or

the leave.

27 Subsection 75(3)

Omit "examine the applicant under Part 3-1", substitute "conduct

examinations in relation to the application".

28 Section 76

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

10 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Omit "examine the applicant under Part 3-1", substitute "conduct

examinations in relation to the application".

29 Subdivision C of Division 5 of Part 2-2 (heading)

Repeal the heading, substitute:

Subdivision C--Compensating for proportion of property not

derived or realised from commission of any offence

30 Subsection 77(1)

Repeal the subsection, substitute:

(1) A court that made a

forfeiture order, or that is hearing, or is to

hear, an application for a forfeiture order, must make an order

under subsection (2) (a compensation order) if:

(a) a person (the applicant) has applied for a compensation

order; and

(b) the court is satisfied that the applicant has an

interest in

property specified in the forfeiture order or in the application

for the forfeiture order; and

applicant's interest was not derived or realised, directly or

indirectly, from the commission of any offence; and

(d) the court is satisfied that the applicant's interest is not an

instrument of any offence; and

(e) in the case of a court that is hearing or is to hear an

application for a forfeiture order--the court makes the

forfeiture order.

31 Paragraph 77(2)(b)

After "Commonwealth", insert ", once the property has vested

absolutely in it,".

32 Section 78

Repeal the section, substitute:

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 11

78 Application for compensation orders

Before a forfeiture order has been made

(1) A person may apply to a court for a

compensation order if an

application for a

forfeiture order that could specify property in

which the person claims an

interest has been made to the court,

but the forfeiture order is yet to be made.

After a forfeiture order has been made

(2) A person who claims an

interest in property specified in a

forfeiture order may, at any time after the forfeiture order is made,

apply to the court that made the forfeiture order for a

compensation order.

(3) However, unless the court gives leave, the person cannot apply

under subsection (2) if he or she:

(a) was notified of the application for the

forfeiture order, but

did not make an application under subsection (1) before the

forfeiture order was made; or

(b) appeared at the hearing of the application for the forfeiture

order.

(4) The court may give the person leave to apply under subsection (2)

if the court is satisfied that:

(a) if paragraph (3)(a) applies--the person had a good reason for

not making an application under subsection (1) before the

forfeiture order was made; or

(b) in either case:

(i) the person now has evidence relevant to the making of

the

compensation order that was not available to the

person at the time the forfeiture order was made; or

(ii) there are other special grounds for granting the leave.

33 At the end of subsection 79(3)

Add "However, the DPP need not do so until it has had a reasonable

opportunity to conduct

examinations in relation to the application.".

34 At the end of Subdivision C of Division 5 of Part 2-2

Add:

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

12 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

79A When an application can be heard

An application for a

compensation order must not be heard until

the

DPP has had a reasonable opportunity to conduct

examinations in relation to the application.

35 Application

(1)

Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of

Crime Act 2002, as amended by this Part, apply in relation to forfeiture

orders under section 47 or 49 of that Act that relate to restraining orders

applied for on or after the commencement of this item, whether the

conduct constituting the offence concerned occurred or occurs before,

on or after that commencement.

(2)

Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of

Crime Act 2002, as amended by this Part, apply in relation to forfeiture

orders under section 48 of that Act applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

36 Section 91 (simplified outline)

Before:

There are cases in which forfeited property can be recovered from

the Commonwealth.

Insert:

There are cases in which compensation is payable by the

Commonwealth.

37 Paragraph 92(1)(a)

Omit "the", substitute "a".

38 Subparagraph 92(1)(b)(i)

After "order", insert "under section 17 or 18".

39 Paragraph 92(3)(a)

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 13

Omit "day of the conviction", substitute "

conviction day".

40 After section 92

Insert:

92A Notice of date of forfeiture under this Part, etc.

(1)

The

DPP must, before property is forfeited under this Part, take

reasonable steps to give any person who has or claims, or whom

the DPP reasonably believes may have, an

interest in the property

a written notice stating:

(a) the date on which the property will be forfeited under this

Part unless it is excluded from forfeiture; and

(b) the effect of section 93 (which deals with

extension orders);

and

the following sections in relation to the property:

(i) section 29 (which deals with the exclusion of property

from

restraining orders);

(ii) section 94 (which deals with the exclusion of property

from forfeiture);

(iii) section 94A (which deals with compensation).

(2)

However,

the

DPP need not give a notice to a person under

subsection (1) if the person has made:

(a) an application for an

extension order in relation to the

property; and

(b) an application under section 30, 31 or 94 in relation to the

property.

41 Paragraph 93(1)(a)

Omit "day of", substitute "

conviction day for".

42 Paragraph 93(1)(b)

Repeal the paragraph, substitute:

(b) the applicant has also applied to the court under:

(i) section 30 or 31 to exclude property from the restraining

order; or

(ii) section 94 to exclude the property that is covered by the

restraining order from forfeiture under this Part; and

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

14 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

43 Paragraph 93(1)(c)

Omit "31", substitute "30, 31 or 94".

44 Subsection 93(1)

Omit "day of" (last occurring), substitute "conviction day for".

45 Subsection 93(2)

Omit "31", substitute "30, 31 or 94".

46 Subsection 93(2)

Omit "day of", substitute "

conviction day for".

47 Subsection 93(3)

Omit "31", substitute "30, 31 or 94".

48 At the end of section 93

Add:

(4) If the court makes the

extension order, the

DPP must take

reasonable steps to give any person who has or claims, or whom

the DPP reasonably believes may have, an

interest in the property

to which the order relates a written notice stating:

(a) the date on which the property will be forfeited under this

Part, in accordance with the extension order, unless it is

excluded from forfeiture; and

(b) the effect of subsections (2) and (3).

49 Subsection 94(1)

Omit "the

restraining", substitute "a

restraining".

50 Subsection 94(1)

Omit "may", substitute "must".

51 Paragraphs 94(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

(a) a person (the applicant) has applied for an order under this

section; and

(b) the court is satisfied that the applicant has an

interest in

property covered by the restraining order; and

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 15

52 Paragraph 94(1)(d)

Omit "the person", substitute "a person".

53 Paragraph 94(1)(e)

Before "property", insert "applicant's interest in the".

54 Paragraph 94(1)(f)

Omit "defendant's", substitute "applicant's".

55 At the end of subsection 94(5)

Add "However, the DPP need not do so until it has had a reasonable

opportunity to conduct

examinations in relation to the application.".

56 At the end of section 94

Add:

(6) The application must not be heard until the

DPP has had a

reasonable opportunity to conduct

examinations in relation to the

application.

57 After section 94

Insert:

94A Compensating for proportion of property not derived or

realised from commission of any offence

(1) The court that made a

restraining order referred to in paragraph

92(1)(b) must make an order that complies with subsection (2) if:

(a) a person (the applicant) has applied for an order under this

section; and

(b) the court is satisfied that the applicant has an

interest in

property covered, or that was at any time covered, by the

restraining order; and

serious offence to which

the restraining order relates; and

(d) the court is satisfied that a proportion of the value of the

applicant's interest was not derived or realised, directly or

indirectly, from the commission of any offence; and

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

16 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(e) the court is satisfied that the applicant's interest is not an

instrument of any offence.

(2) An order under this section must:

(a) specify the proportion found by the court under

paragraph (1)(d); and

(b) direct the Commonwealth, once the property has vested

absolutely in it, to:

(i) if the property has not been disposed of--dispose of the

property; and

(ii) pay the applicant an amount equal to that proportion of

the difference between the amount received from

disposing of the property and the sum of any payments

of the kind referred to in paragraph 100(1)(b) in

connection with the forfeiture.

(3) A person who claims an

interest in property covered by a

restraining order referred to in paragraph 92(1)(b) may apply to

the court that made the restraining order for an order under this

section at any time.

(4) However, if the property has already been forfeited under this Part,

the person cannot, unless the court gives leave, apply under

subsection (3) if he or she:

(a)

either:

(i) was given a notice under subsection 92A(1) in relation

to the property; or

(ii) was not given such a notice because of subsection

92A(2); and

(b) did not make the application under subsection (3) before that

forfeiture.

(5) The court may give the person leave to apply if the court is

satisfied that:

(a) the person had a good reason for not making the application

before the forfeiture; or

(b) the person now has evidence relevant to the application that

was not available before the forfeiture; or

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 17

(6) The person must give written notice to the

DPP of both the

application and the grounds on which the order is sought.

(7)

The

DPP may appear and adduce evidence at the hearing of the

application.

(8)

The

DPP must give the applicant notice of any grounds on which

it proposes to contest the application. However, the DPP need not

do so until it has had a reasonable opportunity to conduct

examinations in relation to the application.

(9) The application must not be heard until the

DPP has had a

reasonable opportunity to conduct

examinations in relation to the

application.

58 Subsection 102(1)

Omit "(1)".

59 Subsection 102(1)

Omit "may", substitute "must".

60 Paragraph 102(1)(b)

Repeal the paragraph, substitute:

(b) the court is satisfied that:

(i) the applicant had an interest in the property before the

forfeiture of the property; and

(ii) the applicant's interest in the property is neither

proceeds of unlawful activity nor an

instrument of

unlawful activity; and

(iii) the applicant's interest in the property was lawfully

acquired;

61 Subparagraph 102(1)(d)(ii)

Omit "declaring that there is payable by the Commonwealth", substitute

"directing the Commonwealth to pay".

62 Subsections 102(2) and (3)

Repeal the subsections.

63 Section 104

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

18 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Repeal the section, substitute:

104 Applying for orders under section 102 or 103

(1) A person who claims an

interest in property that has been forfeited

to the Commonwealth under section 92 may, at any time after the

forfeiture, apply to the court that made the

restraining order

referred to in paragraph 92(1)(b) for an order under section 102 or

103.

(2) However, unless the court gives leave, the person cannot make an

application for an order under section 102 if he or she:

(a)

either:

(i) was given a notice under subsection 92A(1) in relation

to the property; or

(ii) was not given such a notice because of subsection

92A(2); and

(b)

either:

(i) did not make an application under section 29 or 94 in

relation to the property; or

(ii) made such an application and appeared at the hearing of

the application.

(3) The court may give the person leave to apply if the court is

satisfied that:

(a) if subparagraph (2)(b)(i) applies--the person had a good

reason for not making an application under section 29 or 94;

(b) if subparagraph (2)(b)(ii) applies--the person now has

evidence relevant to the person's application under this

section that was not available at the time of the hearing; or

the leave.

(4) The applicant must give written notice to the

DPP of both the

application and the grounds on which the order is sought.

(5)

The

DPP may appear and adduce evidence at the hearing of the

application.

(6)

The

DPP must give the applicant notice of any grounds on which

it proposes to contest the application. However, the DPP need not

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 19

do so until it has had a reasonable opportunity to conduct

examinations in relation to the application.

(7) The application must not be heard until the

DPP has had a

reasonable opportunity to conduct

examinations in relation to the

application.

64 Paragraph 106(b)

Omit "subparagraph 102(1)(d)(i)", substitute "subparagraph 102(d)(i)".

65 Application

Part 2-3 of the Proceeds of Crime Act 2002, as amended by this Part,

applies in relation to property covered by restraining orders made on or

after the commencement of this item, whether the conduct constituting

the offence concerned occurred or occurs before, on or after that

commencement.

66 Paragraph 333(1)(a)

Omit "the person was convicted of", substitute "a court passes sentence

for".

67 Application

Paragraph 333(1)(a) of the Proceeds of Crime Act 2002, as amended by

this Part, applies in relation to a person in relation to whom a court

passes sentence on or after the commencement of this item, whether the

conduct constituting the offence concerned occurred or occurs before,

on or after that commencement.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

20 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 2--Pecuniary penalty orders

Proceeds of Crime Act 2002

68 Subparagraph 121(4)(a)(i)

After "property", insert ", or property suspected of being subject to the

effective control of the person,".

69 Paragraph 122(1)(a)

Omit all the words after "control", substitute "of the person or another

person".

70 Paragraph 122(1)(b)

Omit all the words after "provided", substitute "to the person or another

person".

71 Paragraph 124(1)(c)

After "illegal activity" (last occurring), insert "and the other unlawful

activity".

72 Paragraph 124(5)(a)

After "property", insert ", or property that is suspected of being subject

to the

effective control of the person,".

73 Section 130

Omit "offence" (first occurring), substitute "

unlawful activity".

74 Paragraph 130(a)

Omit "offence", substitute "unlawful activity".

75 Subsection 133(1)

Omit "one or both of subsections (2) and (3) apply", substitute "one or

more of subsections (2), (2A) or (3) apply".

76 After subsection 133(2)

Insert:

(2A)

The

penalty amount may be increased if:

Proceeds of crime Schedule 1

Pecuniary penalty orders Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 21

(a) the penalty amount was reduced under section 130 to take

account of a forfeiture of property or a proposed

forfeiture

order against property; and

(b) one of the following orders has been made:

(i) an order under section 73 or 94 excluding an

interest in

the property from forfeiture;

(ii) an order under section 77 or 94A (which deal with

compensation) directing the Commonwealth to pay an

amount to a person in relation to a proportion of an

interest in the property that was not derived or realised

from the commission of any offence;

(iii) an order under section 102 (which deals with the

recovery of property) in relation to an interest in the

property.

The amount of the increase is such amount as the court considers

appropriate.

(2B) In determining the amount of the increase for the purposes of

subsection (2A), the court may have regard to:

(a) if subparagraph (2A)(b)(i) or (iii) applies--the value of the

interest, as at the time the order was made; and

(b) if subparagraph (2A)(b)(ii) applies--the amount that the

Commonwealth was required to pay; and

77 Application

Division 2 of Part 2-4 of the Proceeds of Crime Act 2002, as amended

by this Part, applies in relation to pecuniary penalty orders applied for

on or after the commencement of this item, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

78 At the end of section 134

Add:

(6) Despite subsections (2) and (3), the court hearing the application

may give leave for the application to be made after the time before

which an application would otherwise need to be made under those

subsections if it is satisfied that it would be in the interests of

justice to allow the application.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

22 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

79 Subsection 136(2)

Omit ", and any affidavit supporting the application,".

80 Subsections 136(3) and (4)

Repeal the subsections, substitute:

(3)

The

DPP must give a copy of any affidavit supporting the

application to a person who would be subject to the

pecuniary

penalty order (if it were made) within a reasonable time before the

hearing of the application.

81 Application

Division 3 of Part 2-4 of the Proceeds of Crime Act 2002, as amended

by this Part, applies in relation to applications made on or after the

commencement of this item for pecuniary penalty orders, whether the

conduct constituting the offence concerned occurred or occurs before,

on or after that commencement.

82 Subsection 146(1)

Repeal the subsection, substitute:

(1) Subject to subsections (2) and (3), a

pecuniary penalty order made

in relation to a person's conviction of an offence is discharged if:

(a) the person's conviction of any of the offences to which the

order relates is subsequently

quashed; and

(b)

the

DPP does not, within 14 days after the conviction is

quashed, apply to the court that made the order for the order

to be confirmed or varied.

83 Subsection 146(2)

Omit "However, unless", substitute "Unless".

84 After subsection 146(2)

Insert:

(2A) To avoid doubt, the

DPP may make an application to confirm the

order and an application to vary the order, and the court may hear

both applications at the same time.

85 Subsection 146(3)

Proceeds of crime Schedule 1

Pecuniary penalty orders Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 23

Repeal the subsection, substitute:

(3)

pecuniary penalty order made in relation to a person's

conviction of an offence is discharged if:

(a) the person's conviction of the offence is subsequently

quashed; and

(b) the order does not relate to any other offence; and

serious offence.

86 Section 147 (including the note)

After "confirmation" (wherever occurring), insert "or variation".

Note:

The heading to section 147 is altered by inserting "or variation" after "confirmation".

87 Subsection 148(1)

After "confirmation", insert "or variation".

Note:

The heading to section 148 is altered by inserting "or variation" after "confirmation".

88 Subparagraph 148(2)(a)(i)

Omit "the offence", substitute "any of the offences to which the order

relates".

89 Subparagraph 148(2)(a)(ii)

Omit "that offence", substitute "any of those offences".

90 Paragraph 148(2)(a)

Omit "the conviction", substitute "such a conviction".

91 After section 149

Insert:

149A Court may vary pecuniary penalty order

(1) The court may vary the

pecuniary penalty order by reducing the

penalty amount by an amount worked out under subsection (2) if

the court is satisfied that:

(a) the order relates to more than one offence; and

(b)

when

the

DPP applied for the order, the court could have

made the order in relation to at least one of the offences that

has not been

quashed.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

24 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(2) The amount is an amount equal to so much of the

penalty amount

as the court reasonably believes to be attributable to a person's

conviction of an offence:

(a) to which the

pecuniary penalty order relates; and

(b)

that

was

quashed.

(3) In determining the amount by which the

penalty amount should be

reduced under subsection (2), the court may have regard to:

(a) the transcripts and evidence referred to in subsection 148(2);

and

(b) the transcript of, and the evidence given in, any proceedings

relating to the application for the

pecuniary penalty order or

any application to vary the order; and

92 Subsection 150(1)

After "149,", insert "or varies the order under section 149A,".

Note:

The heading to section 150 is altered by inserting "or variation" after "confirmation".

93 Subsection 150(2)

After "confirm", insert "or vary".

Note:

The heading to section 181 is altered by omitting "for confirmation of forfeiture" and

substituting "relating to quashing of convictions".

94 Application

Division 5 of Part 2-4 of the Proceeds of Crime Act 2002, as amended

by this Part, applies in relation to convictions quashed on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

95 Paragraph 335(6)(a)

Repeal the paragraph, substitute:

(a) the order would, if made, be one of the following orders

relating to an offence of which a person has been convicted:

(i)

restraining order under section 17;

(ii)

forfeiture order under section 48;

(iii)

pecuniary penalty order under subparagraph

116(1)(b)(i); and

Proceeds of crime Schedule 1

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Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 25

96 Paragraph 335(6)(b)

After "magistrate", insert "(the convicting magistrate)".

97 Subsection 335(6)

Omit "the magistrate", substitute "a magistrate of the same court as the

convicting magistrate".

98 Application

Subsection 335(6) of the Proceeds of Crime Act 2002, as amended by

this Part, applies in relation to persons convicted before a magistrate on

or after the commencement of this item, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

Schedule 1 Proceeds of crime

Part 3 Examinations

26 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 3--Examinations

Proceeds of Crime Act 2002

99 Paragraph 180(1)(b)

Repeal the paragraph, substitute:

(b) a person who is a

suspect in relation to the restraining order;

100 Subsection 180(1)

Omit "affairs", substitute "

affairs".

101 Subsection 180(1)

Omit "(including the nature and location of any property)".

102 Application

Section 180 of the Proceeds of Crime Act 2002, as amended by this

Part, applies in relation to restraining orders applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

103 After section 180

Insert:

180A Examination orders relating to applications for exclusion from

forfeiture

(1) If an application for an order under section 73 or 94 for an

interest

in property to be excluded from forfeiture is made, the court to

which the application is made may make an order (an examination

order) for the

examination of any person including:

(a) a person who has or claims an interest in the property; or

(b) the spouse or

de facto partner of a person referred to in

paragraph (a);

about the

affairs of a person referred to in paragraph (a) or (b).

(2)

The

examination order ceases to have effect when:

(a) the application is withdrawn; or

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 27

(b) the court makes a decision on the application.

180B Examination orders relating to applications for compensation

(1) If an application for an order under section 77 or 94A (which deal

with compensation) is made in relation to an

interest in property

that has been or may be forfeited, the court to which the

application is made may make an order (an examination order) for

the

examination of any person including:

(a) a person who has or claims an

interest in the property; or

(b) the spouse or

de facto partner of a person referred to in

paragraph (a);

about the

affairs of a person referred to in paragraph (a) or (b).

(2)

The

examination order ceases to have effect when:

(a) the application is withdrawn; or

(b) the court makes a decision on the application.

180C Examination orders relating to applications under section 102

(1) If an application for an order under section 102 (which deals with

the recovery of property) is made under section 104 in relation to

forfeited property, the court to which the application is made may

make an order (an examination order) for the

examination of any

person including:

(a) a person who has or claims an

interest in the property; or

(b) the spouse or

de facto partner of a person referred to in

paragraph (a);

about the

affairs of a person referred to in paragraph (a) or (b).

(2)

The

examination order ceases to have effect when:

(a) the application is withdrawn; or

(b) the court makes a decision on the application.

180D Examination orders relating to enforcement of confiscation

orders

(1)

confiscation order has been made but not satisfied, the court

that made the confiscation order may make an order (an

examination order) for the

examination of any person including:

(a) a person against whom the confiscation order was made; or

Schedule 1 Proceeds of crime

Part 3 Examinations

28 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(b) the spouse or

de facto partner of a person referred to in

paragraph (a);

about the

affairs of a person referred to in paragraph (a) or (b).

(2)

The

examination order ceases to have effect when proceedings

relating to the enforcement of the

confiscation order are finally

determined, withdrawn or otherwise disposed of.

180E Examination orders relating to restraining orders revoked

under section 44

(1)

restraining order is revoked under section 44 (which deals

with giving security to revoke etc. a restraining order), the court

that revoked the restraining order may make an order (an

examination order) for the

examination of any person including:

(a) a person whose property was, or a person who had an

interest in property that was, the subject of the restraining

order; or

(b) the spouse or

de facto partner of a person referred to in

paragraph (a);

about the

affairs of a person referred to in paragraph (a) or (b).

(2)

The

examination order ceases to have effect when the

restraining

order would have ceased to have effect, assuming it had not been

revoked under section 44.

104 Application

(1)

Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted

by this Part, apply in relation to applications for orders under section 73

or 77 of that Act:

(a) if the forfeiture order to which the application relates was or

would be made under section 47 or 49 of that Act--that

relate to restraining orders applied for on or after the

commencement of this item; and

(b) if the forfeiture order to which the application relates was or

would be made under section 48 of that Act--that relate to

forfeiture orders applied for on or after the commencement of

this item;

whether the conduct constituting the offence concerned occurred or

occurs before, on or after that commencement.

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 29

(2)

Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted

by this Part, apply in relation to applications for orders under section 94

or 94A of that Act that relate to restraining orders applied for on or after

the commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

(3)

Sections 180C and 180E of the Proceeds of Crime Act 2002, as inserted

by this Part, apply in relation to restraining orders applied for on or after

the commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

(4)

Section 180D of the Proceeds of Crime Act 2002, as inserted by this

Part, applies in relation to confiscation orders applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

105 Subsection 181(1)

Omit "affairs", substitute "

affairs".

106 Subsection 181(1)

Omit "(including the nature and location of any property)".

107 Application

Section 181 of the Proceeds of Crime Act 2002, as amended by this

Part, applies in relation to convictions quashed on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

108 Section 182

Before "An", insert "(1)".

109 At the end of section 182

Add:

(2) The court must consider an application for an

examination order

without notice having been given to any person if the

DPP

requests the court to do so.

Schedule 1 Proceeds of crime

Part 3 Examinations

30 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

110 Subsection 187(4)

Omit "affairs" (first occurring), substitute "

affairs".

111 After paragraph 187(4)(a)

Insert:

(aa) if the examination relates to an application for exclusion from

forfeiture and the person is no longer a person whose affairs

can, under section 180A, be subject to the examination; or

(ab) if the examination relates to an application for an order under

section 77 or 94A and the person is no longer a person whose

affairs can, under section 180B, be subject to the

examination; or

(ac) if the examination relates to an application for an order under

section 102 and the person is no longer a person whose

affairs can, under section 180C, be subject to the

examination; or

(ad) if the examination relates to a

confiscation order that has not

been satisfied and the person is no longer a person whose

affairs can, under section 180D, be subject to the

examination; or

(ae) if the examination relates to a

restraining order that has been

revoked and the person is no longer a person whose affairs

can, under section 180E, be subject to the examination; or

112 Paragraph 187(5)(b)

Repeal the paragraph, substitute:

(b) is relevant to the

affairs of a person whose affairs can, under

section 180, 180A, 180B, 180C, 180D, 180E or 181, be

subject to the examination.

113 Application

Sections 182 and 187 of the Proceeds of Crime Act 2002, as amended

by this Part, apply in relation to examination orders applied for on or

after the commencement of this item, whether the conduct constituting

the offence concerned occurred or occurs before, on or after that

commencement.

114 Section 195 (penalty)

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 31

Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty

units".

115 Subsection 196(1) (penalty)

Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty

units".

116 After section 197

Insert:

197A Giving false or misleading answers or documents

A person commits an offence if:

(a) the person is attending an

examination; and

(b) the person gives an answer or produces a document in the

examination; and

(i) is false or misleading; or

(ii) omits any matter or thing without which it is

misleading.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

117 Subparagraph 269(a)(ii)

Omit "affairs", substitute "

affairs".

118 Section 338

Insert:

affairs of a person includes, but is not limited to:

(a) the nature and location of property of the person or property

in which the person has an interest; and

(b) any activities of the person that are, or may be, relevant to

whether or not the person has engaged in unlawful activity of

a kind relevant to the making of an order under this Act.

119 Section 338 (definition of examination order)

After "180", insert ", 180A, 180B, 180C, 180D, 180E".

Schedule 1 Proceeds of crime

Part 4 Notices

32 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 4--Notices

Proceeds of Crime Act 2002

120 After paragraph 202(5)(c)

Insert:

(ca) a document relevant to identifying, locating or quantifying

property suspected of being:

(i) proceeds of an indictable offence, a

foreign indictable

offence or an

indictable offence of Commonwealth

concern; or

(ii) an instrument of a serious offence;

whether or not the identity of the person who committed the

offence is known;

121 Paragraph 202(5)(d)

Omit "such property", substitute "property referred to in paragraph (c)

or (ca)".

122 Paragraph 202(5)(f)

After "(c),", insert "(ca),".

123 Subsection 202(6)

After "(5)(c)(ii)", insert "or paragraph (5)(ca)".

124 Subsection 202(6)

Omit "subparagraph" (second occurring), substitute "provision".

125 After paragraph 203(1)(c)

Insert:

(ca) specify the form and manner in which those documents are to

be produced; and

126 Subsection 203(2)

Repeal the subsection, substitute:

(2) The time or times specified under paragraph (1)(c) must be:

(a) at least 14 days after the day on which the

production order

is made; or

Proceeds of crime Schedule 1

Notices Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 33

(b) if the magistrate who makes the production order is satisfied

that it is appropriate, having regard to the matters specified in

subsection (3), to specify an earlier time--at least 3 days

after the day on which the production order is made.

(3) The matters to which the magistrate must have regard for the

purposes of deciding whether an earlier time is appropriate under

paragraph (2)(b) are:

(a) the urgency of the situation; and

(b) any hardship that may be caused to the person required by the

production order to produce documents or make documents

available.

127 At the end of section 211

Add:

(3) It is a defence to an offence against subsection (1) if:

(a) the person fails to comply with the

production order only

because the person does not produce one or more documents

specified in the order within the time specified in the order;

and

(b) the person took all reasonable steps to produce the document

or documents within that time; and

practicable after that time.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

128 Application

Part 3-2 of the Proceeds of Crime Act 2002, as amended by this Part,

applies in relation to production orders applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

129 Paragraphs 213(1)(a) and (b)

After "is", insert "or was".

130 Paragraph 213(1)(d)

Omit "such".

Schedule 1 Proceeds of crime

Part 4 Notices

34 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

131 Paragraph 213(1)(e)

After "hold", insert "or held".

132 After paragraph 213(1)(e)

Insert:

(ea) determining whether a

stored value card was issued to a

specified person by a financial institution;

(eb) details of transactions made using such a card over a

specified period of up to 6 months;

133 At the end of subsection 213(3)

Add:

; or (f) the Commissioner of Taxation; or

(g) the Chief Executive Officer of Customs; or

(h) the Chairperson of the Australian Securities and Investments

Commission.

134 Section 214

Before "The", insert "(1)".

135 Paragraph 214(d)

After "provided", insert ", having regard to the record-keeping

capabilities of the financial institution (to the extent known to the

officer)".

136 Paragraph 214(e)

Repeal the paragraph, substitute:

(e) specify that the information or documents must be provided

no later than:

(i) 14 days after the giving of the notice; or

(ii) if the officer giving the notice believes that it is

appropriate, having regard to the matters specified in

subsection (2), to specify an earlier day that is at least 3

days after the giving of the notice--that earlier day; and

137 At the end of section 214

Add:

Proceeds of crime Schedule 1

Notices Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 35

(2) The matters to which the officer giving the notice must have regard

in deciding whether to specify an earlier day under

subparagraph (1)(e)(ii) are:

(a) the urgency of the situation; and

(b) any hardship that may be caused to the

financial institution

required by the notice to provide the information or

documents.

138 Section 218

Before "A", insert "(1)".

139 At the end of section 218

Add:

(2) It is a defence to an offence against subsection (1) if:

(a) the person fails to comply with the notice only because the

person does not provide the information or a document

within the period specified in the notice; and

(b) the person took all reasonable steps to provide the

information or document within that period; and

practicable after the end of that period.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

140 Application

Part 3-3 of the Proceeds of Crime Act 2002, as amended by this Part,

applies in relation to notices given under section 213 of that Act on or

after the commencement of this item, whether the conduct constituting

the offence concerned occurred or occurs before, on or after that

commencement.

141 Subsection 219(1)

Repeal the subsection, substitute:

(1) A judge of a court of a State or Territory that has jurisdiction to

deal with criminal matters on indictment may make an order (a

monitoring order) that a

financial institution provide information

about transactions:

Schedule 1 Proceeds of crime

Part 4 Notices

36 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(a) conducted during a particular period through an

account

held by a particular person with the institution; or

(b) made using a

stored value card issued to a particular person

by a financial institution.

142 Paragraph 219(2)(a)

Omit "in respect of whose

account the information is sought",

substitute "who holds the

account or to whom the

stored value card

was issued".

143 Paragraph 219(2)(b)

After "account", insert "or card".

144 Subsection 219(3)

Omit "in question", substitute "or to whom the card was issued".

145 Paragraph 220(1)(a)

Repeal the paragraph, substitute:

(a) specify the name or names:

(i) in which the

account is believed to be held; or

(ii) of the person to whom the

stored value card was

issued; and

146 Application

Part 3-4 of the Proceeds of Crime Act 2002, as amended by this Part,

applies in relation to monitoring orders applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

147 Section 338 (definition of account)

Repeal the definition, substitute:

account means any facility or arrangement through which a

financial institution accepts deposits or allows withdrawals and

includes:

(a) a facility or arrangement for:

(i)

fixed term deposit; or

(ii) a safety deposit box; and

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2009 37

(b) a credit card account; and

(d) an account held in the form of units in:

(i) a cash management trust; or

(ii) a trust of a kind prescribed by the regulations; and

(e) a closed account.

To avoid doubt, it is immaterial whether:

(f) an account has a nil balance; or

(g) any transactions have been allowed in relation to an account.

148 Section 338

Insert:

stored value card means a portable device that is capable of storing

monetary value in a form other than physical currency, or as

otherwise prescribed by the regulations.

Schedule 1 Proceeds of crime

Part 5 Ancillary orders

38 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 5--Ancillary orders

Proceeds of Crime Act 2002

149 After paragraph 39(1)(c)

Insert:

(ca) an order directing the

suspect in relation to the restraining

order to give a sworn statement to a specified person, within

a specified period, setting out all of his or her

interests in

property, and his or her liabilities;

150 Paragraph 39(1)(d)

After "owner" (first occurring), insert "or a previous owner".

151 Paragraph 39(1)(d)

After "owner" (second occurring), insert "or previous owner".

152 After paragraph 39(1)(d)

Insert:

(da) if the court is satisfied that there are reasonable grounds to

suspect that a person (other than the owner or a previous

owner) has information relevant to identifying, locating or

quantifying the property--an order directing the person to

give a sworn statement to a specified person, within a

specified period, setting out particulars of, or dealings with,

the property;

153 Paragraph 39(1)(g)

After "restraining order", insert ", or who has

effective control of

property covered by a restraining order,".

154 After subsection 39(3)

Insert:

(3A) Despite subsection (3), the court must consider an application for

an ancillary order without notice having been given under that

subsection if:

(a)

the

DPP requests the court to do so; and

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Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 39

(b)

the

restraining order to which the application relates was

considered, in accordance with subsection 26(4), without

notice having been given.

155 After subsection 39(4)

Insert:

(4A) The court may, at any time before finally determining the

application, direct the

DPP to give or publish notice of the

application to a specified person or class of persons. The court may

also specify the time and manner in which the notice is to be given

or published.

(4B) If the court makes the ancillary order after a request under

subsection (3A), the

DPP must give written notice to any person

whom the DPP reasonably believes may be affected by the order.

156 After section 39

Insert:

39A Privilege against self incrimination etc. does not apply

(1) A person is not excused from giving a sworn statement under

paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would

tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of a natural person, a sworn statement is not

admissible in civil or criminal proceedings against the person who

made the statement except:

(a) in criminal proceedings for giving false or misleading

information; or

(b) in proceedings on an application under this Act; or

(d) in proceedings for enforcement of a

confiscation order.

39B Application to revoke ancillary order

(1) A person may apply to the court that made an ancillary order under

section 39 to revoke the order if:

(a) the person is affected by the order; and

Schedule 1 Proceeds of crime

Part 5 Ancillary orders

40 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(b) the application for the ancillary order was heard without

notice having been given under subsection 39(3) following a

request under subsection 39(3A).

(2) The application must be made within 14 days after the person was

notified of the ancillary order.

(3) The applicant must give written notice of the application, and the

grounds on which the revocation is sought, to any person who was

entitled to make the application for the ancillary order (see

subsection 39(2)).

(4) The effect of the ancillary order is stayed until the court determines

the application.

(5) The court may revoke the ancillary order on application under

subsection (1) if it considers it appropriate to do so.

(6) The court may have regard to any matter it considers appropriate in

determining the application.

(7)

If:

(a) the ancillary order directed a person to do a thing within a

particular period; and

(b) an application is made to revoke the order under this section;

the court may, if it considers it appropriate to do so, vary the order

to extend that period by a specified period.

157 Section 40 (note)

After "restraining order", insert ", or who has effective control of

property covered by a restraining order,".

158 Application

Division 5 of Part 2-1 of the Proceeds of Crime Act 2002, as amended

by this Part, applies in relation to restraining orders applied for on or

after the commencement of this item, whether the conduct constituting

the offence concerned occurred or occurs before, on or after that

commencement.

Proceeds of crime Schedule 1

Evidence Part 6

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 41

Part 6--Evidence

Proceeds of Crime Act 2002

159 Subsection 64(2)

Omit "If the application relates to a person's conviction of an

indictable offence, the court", substitute "The court".

160 Paragraph 64(2)(a)

Repeal the paragraph, substitute:

(a) the transcript of any proceeding against the person for an

offence that constitutes

unlawful activity; and

161 Application

Section 64 of the Proceeds of Crime Act 2002, as amended by this Part,

applies in relation to forfeiture orders applied for on or after the

commencement of this item, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

162 Subsection 138(2)

Omit "If the application relates to a person's conviction of an

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (NO. 2) 2009